NOTE: Where it is feasible, a
syllabus (headnote) will be released, as is being done in
connection with this case, at the time the opinion is
issued.The syllabus constitutes no part of the opinion of
the Court but has been prepared by the Reporter of Decisions
for the convenience of the reader.See United States
v. Detroit Timber & Lumber Co.,200 U.S. 321,
337.

CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIRST CIRCUIT

No. 041144. Argued November
30, 2005Decided January 18, 2006

New Hampshires Parental Notification
Prior to Abortion Act, in relevant part, prohibits physicians
from performing an abortion on a pregnant minor until 48 hours
after written notice of such abortion is delivered to her
parent or guardian. The Act does not require notice for an
abortion necessary to prevent the minors death if there
is insufficient time to provide notice, and permits a minor to
petition a judge to authorize her physician to perform an
abortion without parental notification. The Act does not
explicitly permit a physician to perform an abortion in a
medical emergency without parental notification. Respondents,
who provide abortions for pregnant minors and expect to provide
emergency abortions for them in the future, filed suit under 42 U.S.C. §
1983 claiming that the Act is unconstitutional because it
lacks a health exception and because of the inadequacy of the
life exception and the judicial bypass confidentiality
provision. The District Court declared the Act
unconstitutional and permanently enjoined its enforcement, and
the First Circuit affirmed.

Held: If enforcing a statute that
regulates access to abortion would be unconstitutional in
medical emergencies, invalidating the statute entirely is not
always necessary or justified, for lower courts may be able to
render narrower declaratory and injunctive relief.
Pp. 410.

(a) As the case
comes to this Court, three propositions are established.
First, States have the right to require parental involvement
when a minor considers terminating her pregnancy. Second, a
State may not restrict access to abortions that are necessary, in appropriate medical
judgment for preservation of the life or health of the
mother. Planned
Parenthood of Southeastern Pa. v. Casey,505 U.S. 833, 879
(plurality opinion). Third, New Hampshire has not taken issue
with the cases factual basis: In a very small
percentage of cases, pregnant minors need immediate abortions
to avert serious and often irreversible damage to their health.
New Hampshire has conceded that, under this Courts
cases, it would be unconstitutional to apply the Act in a
manner that subjects minors to significant health risks.
Pp. 46.

(b) Generally speaking, when
confronting a statutes constitutional flaw, this Court
tries to limit the solution to the problem, preferring to
enjoin only the statutes unconstitutional applications
while leaving the others in force, see United States v.
Raines,362 U.S.
17, 2022, or to sever its problematic portions while
leaving the remainder intact, United States v.
Booker, 543
U.S. 220, 227229. Three interrelated principles
inform the Courts approach to remedies. First, the Court
tries not to nullify more of a legislatures work than is
necessary. Second, mindful that its constitutional mandate and
institutional competence are limited, the Court restrains
itself from rewrit[ing] state law to confirm it to
constitutional requirements. Virginia v.
American Booksellers Assn., Inc.,484 U.S. 383, 397.
Third, the touchstone for any decision about remedy is
legislative intent. After finding an application or portion of
a statute unconstitutional, the Court must ask: Would the
legislature have preferred what is left of its statute to no
statute at all? See generally, e.g., Booker, supra, at
227. Here, the courts below chose the most blunt
remedypermanently enjoining the Acts enforcement
and thereby invalidating it entirely. They need not have done
so. In Stenberg v. Carhart,530 U.S.
914where this Court invalidated Nevadas
partial birth abortion law in its entirety for
lacking a health exceptionthe parties did not ask for,
and this Court did not contemplate, relief more finely drawn,
but here New Hampshire asked for and respondents recognized the
possibility of a more modest remedy. Only a few applications
of the Act would present a constitutional problem. So long as
they are faithful to legislative intent, then, in this case the
lower courts can issue a declaratory judgment and an injunction
prohibiting the Acts unconstitutional application. On
remand, they should determine in the first instance whether the
legislature intended the statute to be susceptible to such a
remedy. Pp. 610.

(c) Because
an injunction prohibiting unconstitutional applications or a
holding that consistency with legislative intent requires
invalidating the statue in toto should obviate any
concern about the Acts life exception, this Court need
not pass on the lower courts alternative holding. If the
Act survives in part on remand, the Court of Appeals should
address respondents separate objection to the judicial
bypass confidentiality provision. P. 10.